"Take two aspirin and call me after the election"

. . .it is possible to achieve the
administration's goal of having someone else pay for women's
contraceptives without forcing unwilling religious believers to foot the
bill. . .

"Take two aspirin and call me after the election" is the kind of advice one
would expect from former members of President Obama's transition and HHS review
teams in response to protests about the HHS birth control mandate, so the
closing words of Professor R. Alta Charo in her
NEJM Perspectivecolumn
are not unexpected.1

Consistent with her previous service to the President, Professor Charo
observes that the Obama administration will 'win' if the current controversy
can be framed as a dispute about contraceptives, and then loyally attempts
to do just that.

"Let's recognize," she writes, "that the current debate is about public
health and contraception."

Actually, at root, the current debate is about who should pay for
contraceptives. (And surgical sterilization and embryocidal drugs and
devices, but leave those aside for the moment.)

The policy of the Obama administration is that women who use
contraceptives should not have to pay for them. Unfortunately,
contraceptives cost money. If women are not to pay for them, someone else
must do so. President Obama decided that the buck should stop with
employers, but this caused a firestorm of protest from employers with strong
moral objections to contraception.2 The
President then promised to force insurance companies rather than employers
to pay in some circumstances. The details are to be worked out some time in
the future - after the election, it seems:3
hence Professor Charo's prescription for aspirin.

This has not had the desired effect. The dispute about who should be made
to pay for contraceptives continues unabated, and it is not certain that
stocks of aspirin will last until November. Religious believers refuse to
allow federal bureaucrats to decree what 'counts' as an expression of
religious belief, or to substitute FDA-approved moral reasoning for their
own.4

However, it is possible to achieve the administration's goal of having
someone else pay for women's contraceptives without forcing unwilling
religious believers to foot the bill, without becoming entangled in complex
and contentious evaluations of moral complicity, and without triggering
legal challenges under the First Amendment. All that the administration and
its supporters need do is pass a law that forces pharmaceutical companies
and other manufacturers of contraceptives to produce and distribute their
birth control products without charge to women as a condition of doing
business in the United States. The companies would be expected to swallow
the associated costs as business expenses, or as charitable donations that
can be deducted from their taxes.

It is possible that the companies might (as some would have it) declare a
"war on women" by refusing to provide contraceptives free of charge, but a
President who is willing to stand firm against religious believers and their
beliefs would surely take at least as strong a stand against pharmaceutical
companies and their profits. In any case, the requirement would not violate
the First Amendment, since the companies clearly have no moral or religious
objections to their own products.

However, it is not clear from her NEJM Perspective column that
this arrangement would satisfy Professor Charo. Beyond ensuring that women
don't have to pay for contraception, her interests extend to what she
describes as "the more enduring question" about to what extent religious
believers should be free to act in "our public space." (emphasis added) This
seems to imply that "public space" properly belongs only to the
non-religious, or those who share Professor Charo's views. Alternatively (or
additionally) she may mean that religious believers acting outside the
confines of "houses of worship" must conform to the dominant ethos, or the
demands of the state, even if this means forcing them to do what they
believe to be wrong.

Thus, despite her attempt to "reframe" the controversy so that the
administration can 'win,' Professor Charo ultimately demonstrates that
freedom of conscience is central to the discussion, even if not in precisely
the way that it is central in particular cases involving more direct
complicity in morally contentious acts. It is difficult to see how it could
be otherwise, as long as the administration's answer to the question, "Who
should have to pay for contraceptives?" is "Those who think they are
immoral."

Notes

1. Her participation is not mentioned in
her NEJM disclosure forms, but is noted on her
profile at
University of Wisconsin Law School, R. Alta Charo. (Accessed 2012-03-17)